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  1. #1

    Question Appealing Small Claims Decision Over Damages

    My question involves landlord-tenant law in the State of: Michigan


    I moved out of an apartment on Sept. 30 and was sent a notice of damages by the landlords dated Oct. 5. At the bottom of the form it is stated that I had until Oct. 20 to dispute the damages in writing, otherwise they would pass the charges on to a collection agency. I hand delivered them my written dispute on Oct. 19. I then received a letter from the landlords dated Oct. 25, stating that I was still liable for damages and demanding payment by Nov.9. On Nov. 9 I hand delivered another letter to the landlords informing them of the security deposit law in Michigan which states that the landlord has 45 days after termination of occupancy to commence court action for a money-judgement against the tenant in order to withhold the security deposit, otherwise the landlord waives all rights to damage claims and is liable to the tenant for double the amount of the deposit. On Nov.15 (the 46th day after move out) the landlords filed an affidavit for small claims court.

    Upon advice from my attorney, I drafted a motion to dismiss based upon the landlords' failure to comply with the 45 day limit (which in the Michigan statute is explicitly strict, adding the phrase "and not thereafter".) The attorney magistrate refused a copy of the motion, citing the informal nature of small claims court proceedings. When called to give my argument, I read aloud the exact wording of the law which I had cited in the motion to dismiss, along with the section number, etc. The attorney magistrate decided to disregard the law, citing that I had failed to reply to the initial notice of damages within 7 days of receipt of same, and ruled in favor of the landlords.

    Upon further research after the trial, I found that I did indeed only have 7 days to dispute the notice of damages under Michigan law. However, I also found this:

    Act 348 of 1972

    554.609 Itemized list of damages; check or money order; contents of notice of damages.

    Sec. 9.

    "...The notice of damages shall include the following statement in 12 point boldface type which shall be at least 4 points larger than the body of the notice: 'You must respond to this notice by mail within 7 days after receipt of same, otherwise you will forfeit the amount claimed for damages.'"

    There was no such statement on the notice I received, instead (as noted above):

    "If you object to any charges you must notify us in writing on or before October 20, 2011." As noted, the notice was dated Oct. 5, giving me a full two weeks to reply, as opposed to 7 days.

    Before I move to appeal this decision, I would like to know if the landlords' failure to include the statement in section 9 above on the notice of damages (and instead giving me the false impression that I had two weeks to reply) in any way invalidates the notice, and can this be used as an argument in civil court to persuade the judge to enforce the 45 day limit for court action?

    Sorry for the long post. Thank you for any replies.

  2. #2
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    Default Re: Appealing Small Claims Decision Over Damages

    Although Michigan law does require a landlord to follow specific protocols and deadlines in order to claim money from a security deposit without going to court, the landlord's failure to do so does not prevent him from obtaining a money judgment for the damages the former tenant has caused. If your lawyer told you differently, he needs to hit the law books a bit harder.
    Quote Quoting Oak Park Village v. Gorton, 128 Mich.App. 671; 341 N.W.2d 788 (1983), emphasis added
    We, however, do not deem the 45-day time limit of 13(1) to be a statute of limitations because no legislative intent to shorten the applicable period of limitations or to abolish the common law action for damages is expressed in the title of the statute, as required by Const.1963, art. 4, 24. The title of the landlord tenant relationship act states:

    “An act to regulate relationships between landlords and tenants relative to rental agreements for rental units; to regulate the payment, repayment, use and investment of security deposits; to provide for commencement and termination inventories of rental units; to provide for termination arrangements relative to rental units; to provide for legal remedies; and to provide penalties.” (Emphasis added.)
    Nothing in the title suggests that the LTRA is intended to abolish a preexisting remedy for damages or to shorten an existing statute of limitations. See, generally, 5805 of the Revised Judicature Act, M.C.L. 600.5805; M.S.A. 27A.5805. While the Legislature has great leeway in the phrasing of a title and need not provide an item by item road map of each provision of the statute, still an act may not clearly exceed the scope of its title. Const.1963, art. 4, 24 is not a hollow formality and has been given consistent adherence by the courts of this state. Maki v. East Tawas, 385 Mich. 151, 158-159, 188 N.W.2d 593 (1971).
    So your landlord had the right to seek a money judgment against you for damages you caused, even if that action was filed after the forty-five day period and even if there were technical defects with his notice of the damages you caused in his prior correspondence relating to your security deposit.

  3. #3

    Default Re: Appealing Small Claims Decision Over Damages

    Quote Quoting Mr. Knowitall
    View Post
    Although Michigan law does require a landlord to follow specific protocols and deadlines in order to claim money from a security deposit without going to court, the landlord's failure to do so does not prevent him from obtaining a money judgment for the damages the former tenant has caused. If your lawyer told you differently, he needs to hit the law books a bit harder.

    So your landlord had the right to seek a money judgment against you for damages you caused, even if that action was filed after the forty-five day period and even if there were technical defects with his notice of the damages you caused in his prior correspondence relating to your security deposit.
    Thank you for your detailed reply. It seems strange to me that the law would contain such specific wording as "and not thereafter" if it was not meant to place a time limitation on the actions of the landlord. Why would such a specific and explicitly worded law be in place if it was never intended to be adhered to in the first place? The law states that failure by the landlords to comply with it constitutes a waiver of their claims to any damages.

    And if this section of the law is so loosely interpreted and malleable as to render it irrelevant to any legal application, yet the section pertaining to time limits for the tenant is strictly enforced, it would seem to me that there is some favoritism or even collusion going on between landlords and the court system.

    BTW, the lawyer I spoke to is just a friend and told me point blank that he doesn't know much about small claims court, so he could not guarantee his advice.

  4. #4
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    Default Re: Appealing Small Claims Decision Over Damages

    The limit is on claims against the security deposit, not claims for damages. You can use the statute to compel the return of your security deposit, and possibly also to obtain statutory damages, if the time limits are not followed, but the fact that you have a claim for the return of your deposit does not let you off the hook for damaging your landlord's property.

  5. #5
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    Default Re: Appealing Small Claims Decision Over Damages

    Is it possible that the landlord's claim for damages gives him the right of "offset" (sometimes called "setoff") in that he doesn't have to pay you money he owes you if you owe him the same or more?

    Could it be that the landlord has a right to keep the deposit regardless of other statutory deadlines if offsetting damages have been claimed?

    I don't know your state and I'm coming up blank with google, lol, but that's the way it would work in my state. Once the landlord gave notice of money due for damages, he would have no obligation to return the deposit under any circumstances until his claim was settled. If he lost in small claims, he'd have to pay the deposit but not the penalty due to good faith.

    Please don't take my comments as answers, but rather as questions because again, I don't know your state. It's just something I'd look into because landlord tenant laws were based on common law at one time, and still can be similar at their root in various states.

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